F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
APR 14 1998
TENTH CIRCUIT
PATRICK FISHER
Clerk
JACK LAUREN MARTIN,
Petitioner-Appellant,
No. 97-6424
v. (W. District of Oklahoma)
(D.C. No. 95-CV-1498)
STEVE HARGETT,
Respondent-Appellee.
ORDER AND JUDGMENT *
Before BALDOCK, EBEL, and MURPHY, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The cause is
therefore ordered submitted without oral argument.
Jack L. Martin filed the instant 28 U.S.C. § 2254 petition, the third § 2254
petition that Martin has filed with the district court, on September 26, 1995. The
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
district court dismissed the petition pursuant to Rule 9(b) of the Rules Governing
Section 2254 Cases in the United States District courts, concluding that it was
both successive and abusive. This case is before the court on Martin’s pro se (1)
Motion for Leave to Proceed on Appeal Without Prepayment of Costs or Fees and
(2) Application for Certificate of Probable Cause. 1
Martin is not entitled to a certificate of probable cause unless he can make
a substantial showing of the denial of a constitutional right. See Barefoot v.
Estelle , 463 U.S. 880, 893 & n.4 (1983). Martin can make such a showing by
demonstrating that (1) the issues he raise are debatable among jurists, (2) an
appellate court could resolve the issues differently, or (3) the questions presented
deserve further proceedings. Id. Upon a de novo review of Martin’s Application
for a Certificate of Probable Cause, his appellate brief, the magistrate’s Report
and Recommendation, the district court’s Memorandum Opinion and Order, and
the entire record on appeal, we conclude that Martin has failed to demonstrate the
district court’s resolution of this petition is debatable or reasonably subject to a
different outcome on appeal. Accordingly, we DENY Martin a certificate of
Because Martin filed his habeas petition before enactment of the
1
Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub L. No.
104-132, 110 Stat. 1214, AEDPA’s certificate of appealability requirements do
not apply to this appeal. See United States v. Kunzman, 125 F.3d 1363, 1364 n.2.
(10th Cir. 1997). Instead, the pre-AEDPA certificate of probable cause
requirements apply here.
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probable cause and DISMISS this appeal. Martin’s motion to proceed on appeal
in forma pauperis is also DENIED .
ENTERED FOR THE COURT:
Michael R. Murphy
Circuit Judge
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